Citation Nr: 0300605
Decision Date: 01/10/03 Archive Date: 01/28/03
DOCKET NO. 92-21 299 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office in
Nashville, Tennessee
THE ISSUES
1. Entitlement to service connection for a pulmonary
disorder.
2. Entitlement to an increased (compensable) rating for
bilateral defective hearing, for the period prior to June
10, 1999.
3. Entitlement to an increased (compensable) rating for
left ear otitis media with postoperative residuals, for
the period prior to June 10, 1999.
(The issues of entitlement to an increased (compensable)
rating for bilateral defective hearing, for the period on
and subsequent to June 10, 1999 and entitlement to an
increased (compensable) rating for left ear otitis media
with postoperative residuals, for the period on and
subsequent to June 10, 1999, will be addressed by the
Board in a separate decision).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R.P. Harris, Counsel
INTRODUCTION
The appellant had active service from September 1974 to
February 1976. This matter came before the Board of
Veterans' Appeals (Board) on appeal from a February 1991
rating decision by the Louisville, Kentucky, Regional
Office, which denied reopening of a back disability
service connection claim (including "muscle spasm");
denied service connection for a pulmonary disorder; and
confirmed noncompensable ratings each for defective
hearing and left ear otitis media with postoperative
residuals. In October 1994, April 1995, and May 1998, the
Board remanded the case for additional evidentiary
development. An October 1998 rating decision granted
service connection for a back disability, thereby
rendering moot said issue. The case is now handled by the
Nashville Regional Office (RO).
With regards to other procedural matters involving the
bilateral defective hearing and left ear otitis media
rating issues, the VA amended its regulations for rating
diseases of the ear and other sense organs (which includes
defective hearing acuity and otitis media), effective June
10, 1999. See 64 Fed. Reg. 25,202-210 (May 11, 1999)
(codified at 38 C.F.R. §§ 4.85-86 (1999-2000)), effective
June 10, 1999. The Board will render a decision herein on
the reframed issues of entitlement to increased
(compensable) ratings for bilateral defective hearing and
left ear otitis media with postoperative residuals, for
the period prior to June 10, 1999, and said pulmonary
disorder service connection issue.
The Board will undertake additional development on the
issues of entitlement to increased (compensable) ratings
for bilateral defective hearing and left ear otitis media
with postoperative residuals, for the period on and
subsequent to June 10, 1999, pursuant to authority granted
by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (codified at
38 C.F.R. § 19.9(a)(2)). When the additional development
is completed, the Board will provide notice as required by
Rule of Practice 903. 67 Fed. Reg. 3,099, 3,105 (Jan. 23,
2002) (codified at 38 C.F.R. § 20.903). After issuing the
notice and reviewing appellant's response to the notice,
the Board will prepare a separate decision addressing
these remaining increased ratings appellate issues.
FINDINGS OF FACT
1. A chronic pulmonary disorder was not shown, by
competent evidence, to have been present during service or
proximate thereto. A chronic pulmonary disability was
initially medically diagnosed decades after service at a
time too remote to be reasonably related to service.
2. Appellant's bilateral hearing acuity, for the period
prior to June 10, 1999, was clinically shown at no greater
than Level II for the right ear and Level II for the left
ear.
3. For the period prior to June 10, 1999, puretone
thresholds at each of the four specified frequencies
(1000, 2000, 3000, and 4000 Hertz) were not 55 decibels or
more nor were the puretone thresholds 30 decibels or less
at 1000 Hertz and 70 decibels or more at 2000 Hertz on
audiologic examination.
4. For the period prior to June 10, 1999, appellant's
service-connected left ear otitis media with central
perforation of the tympanic membrane, status post left
tympanomastoidectomy, was manifested primarily by
intermittent, recurrent, infection with drainage.
CONCLUSIONS OF LAW
1. A chronic pulmonary disorder was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107
(West 1991 & Supp. 2002); 38 C.F.R. § 3.303 (2002).
2. The criteria for an increased (compensable) evaluation
for bilateral defective hearing, for the period prior to
June 10, 1999, have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.321(b)(1),
4.1, 4.10, 4.85, 4.87a, and Diagnostic Code 6100 (1991-
1999).
3. The criteria for an increased evaluation of 10
percent, but no more, for left ear otitis media with
postoperative residuals, for the period prior to June 10,
1999, have been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991 & Supp. 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.10,
4.87a, Diagnostic Code 6200 (1991-1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114
Stat. 2096 (2000), as codified at 38 U.S.C.A. § 5100 et.
seq. (West Supp. 2002) became law. This law redefines the
obligations of VA with respect to the duty to assist and
includes an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. There have also been final regulations
promulgated to implement the new law. See 66 Fed. Reg.
45,620-32 (August 29, 2001) (codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326 (2002)). This change
in the law is potentially applicable to all claims filed
on or after the date of enactment of the Veterans Claims
Assistance Act of 2000, or filed before the date of
enactment and not yet final as of that date. 38 U.S.C.A.
§ 5100 et. seq. (West Supp 2002); see also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
However, recent decisions rendered by the United States
Court of Appeals for the Federal Circuit have held that
Section 3 of the Veterans Claims Assistance Act of 2000,
dealing with notice and duty to assist requirements, does
not apply retroactively to any claim filed prior to the
date of enactment of that Act and not final as of that
date. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir.
2002) and Bernklau v. Principi, 291 F.3d 795 (Fed. Cir.
2002). Thus, since appellant's claims at issue were not
final on November 9, 2000, it appears that Section 3 of
the Veterans Claims Assistance Act of 2000, dealing with
notice and duty to assist requirements, may not be
applicable here.
Even assuming arguendo, that Section 3 of the Veterans
Claims Assistance Act of 2000 is applicable in the instant
appeal, after reviewing the record, the Board is satisfied
that all relevant facts have been properly developed,
particularly in light of the partial allowance by the
Board decision herein on the left ear disability increased
rating issue. A comprehensive medical history, detailed
clinical findings, and other relevant evidence with
respect to the claimed disabilities over the years are
documented in the claims folders. The RO has adequately
sought appellant's service medical records and available
records have been obtained. See, in particular, the RO's
September 1983 request for service medical records and the
National Personnel Records Center (NPRC) response with
appellant's available service medical records submitted.
Additionally, the RO sought private and VA medical
treatment records identified by appellant and these have
also been associated with the claims folders.
Pursuant to the Board's October 1994, April 1995, and May
1998 remands, additional clinical records, including
voluminous SSA records, were obtained. Additionally, 1996
and 1998 VA audiologic and ear, nose, and throat (ENT)
examinations, a June 9, 1999 ENT examination, and 1996 and
1998 VA pulmonary examinations were conducted, including
medical opinion rendered on the etiology of appellant's
pulmonary disability. The audiologic and ENT examinations
conducted during the period in question, which included
speech discrimination and puretone audiometry testing and
clinical assessment of the ear, are sufficiently detailed
and comprehensive for rating appellant's bilateral hearing
acuity and left ear otitis media residual disability.
Furthermore, the 1998 VA pulmonary examination appears
adequate and included a sufficient review of the claims
folder with medical opinion rendered as to the pulmonary
etiological question in controversy, as will be explained
in detail below. There is no indication that there is any
additional, available, material evidence not of record
which would alter the outcome.
Additionally, appellant was issued a Statement of the Case
and Supplemental Statements of the Case, which included
relevant laws and regulations, relevant rating criteria,
discussion of relevant clinical evidence, and a detailed
explanation of the rationale for the adverse decision.
Furthermore, a recent February 2002 Supplemental Statement
of the Case discussed the Veterans Claims Assistance Act
of 2000; and appellant's representative has subsequently
submitted additional argument with respect to the
appellate issues.
The evidentiary record includes available service medical
records, numerous private clinical records, and recent VA
examinations. It does not appear that appellant has
informed the VA of the existence of any other specific
competent evidence that should be obtained. The Board
concludes it may proceed, as all evidence has been
received, without regard to more specific notice as to
which party could or should obtain which evidence. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002). It is
the Board's opinion that there is no indication that other
existing evidence should be obtained and that the duty to
assist as contemplated by applicable provisions, including
the Veterans Claims Assistance Act of 2000 to the extent
it may apply, has been satisfied with respect to the
issues on appeal.
I. Service Connection for a Pulmonary Disorder
Appellant contends, in essence, that during service, he
was treated for a pulmonary condition, including pneumonia
in October 1974; and that his current pulmonary disorder
is related to service. However, appellant is not
competent to offer medical opinion or diagnosis. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1991).
In deciding the service connection appellate issue, the
Board will consider applicable statutory and regulatory
provisions, including the following:
Service connection for VA disability compensation purposes
may be awarded for disability resulting from disease or
injury incurred in or aggravated by service. 38 U.S.C.A.
§§ 1110, 1131.
In pertinent part, for the showing of chronic disease in
service, there are required a combination of
manifestations sufficient to identify the disease entity,
and sufficient observation to establish chronicity at the
time, as distinguished from merely isolated findings or
diagnoses including the word "Chronic." Continuity of
symptomatology is required only where the condition noted
during service (or in the presumptive period) is not, in
fact, shown to be chronic, or where the diagnosis of
chronicity may legitimately be questioned. When the fact
of chronicity in service is not adequately supported, then
a showing of continuity after discharge is required to
support the claim. 38 C.F.R. § 3.303(b). Service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent
to service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
In Pond v. West, 12 Vet. App. 341, 346 (1999), the United
States Court of Appeals for Veterans Claims (Court) held
that "[g]enerally, to prove service connection, a claimant
must submit (1) medical evidence of a current disability,
(2) medical evidence, or in certain circumstances lay
testimony, of in-service incurrence or aggravation of an
injury or disease, and (3) medical evidence of a nexus
between the current disability and the in-service disease
or injury."
A September 1974 service entrance examination and an
attendant medical questionnaire did not reveal any
complaints, findings, or diagnoses pertaining to a
pulmonary disability.
The service medical records reveal that in late October
1974, appellant complained of cold symptoms and in early
November 1974, was hospitalized for three days for an
upper respiratory infection. A chest x-ray study was
negative. Viral syndrome and acute respiratory disease
were diagnosed. A December 1975 service separation
examination and attendant medical questionnaire did not
reveal any complaints, findings, or diagnoses pertaining
to a chronic pulmonary disability. A chest x-ray study
was negative.
In an initial application for VA disability benefits
signed in September 1988, appellant made no mention of a
pulmonary disability.
In an April 1977 private medical questionnaire, appellant
reported being a factory worker. He denied chronic cough,
asthma, or bronchitis. He did allege having had pneumonia
and frequent colds. Clinical elaboration did not mention
any current pulmonary disability.
VA clinical records dated in the late 1980's made no
mention of a pulmonary disability. In 1988, a chest x-ray
was negative. Appellant was reportedly an alcoholic and
was a 3-pack/day smoker.
VA outpatient treatment records revealed that in August
1990, chronic bronchitis (asthmatic) was diagnosed. A
September-October 1990 VA hospitalization report indicated
that appellant had wheezes and course breath sounds. A
chest x-ray study was negative. Asthmatic bronchitis was
diagnosed. In December 1990, VA outpatient treatment
records noted a chronic cough of 4 years and asthma was
assessed. It was also indicated that appellant was
homeless and that he should discontinue smoking.
On April 1996 VA examination, appellant reported a 35-year
history of smoking since age 5. A chest x-ray study was
interpreted as consistent with chronic obstructive
pulmonary disease. Moderate obstructive pulmonary disease
"due to heavy cigarette smoking" was diagnosed. A
September 1996 VA examination report included similar
findings and diagnosis.
Pursuant to May 1998 Board remand, additional SSA records
with private and VA clinical records were obtained and an
August 1998 VA pulmonary examination with medical opinion
was rendered on the etiology of appellant's pulmonary
disability. Said additional SSA records with private and
VA clinical records are dated primarily in the 1980's or
later, many years post service; do not relate his
variously diagnosed pulmonary disability to service; and,
thus, are not material to the pulmonary service connection
issue on appeal. Said records include 1981 and 1983 VA
hospitalization reports, which did not include any
pertinent respiratory system complaints, findings, or
diagnoses. Chest x-rays were negative.
The examiner who conducted said August 1998 VA pulmonary
examination stated that he had "extensively" reviewed the
claims file and opined that appellant's "underlying
chronic obstructive pulmonary disease, is etiologically
related to the propensity the patient has towards
cigarette smoking. In addition, asthmatic conditions,
with exacerbations of wheezing, cough and shortness of
breath were noted to occur long after the military
service...." He further opined that there was less than a
20 percent degree of probability that the onset of
appellant's pulmonary disorder was during service or was
etiologically related to service.
The Board concludes that the August 1998 VA pulmonary
examination report's medical opinion as to the onset of
appellant's pulmonary disability was adequately supported
by material facts and based on the actual clinical
evidence in the claims folders; and the opinion is
unrebutted by any other medical opinion of record. Thus,
said medical opinion constitutes credible, competent
evidence that is overwhelmingly negative on this
etiological point in controversy. As the Court has stated
in Smith v. Derwinski, 1 Vet. App. 235, 237 (1991),
"[d]etermination of credibility is a function for the
BVA."
It has not been shown, by credible competent evidence,
that appellant's chronic pulmonary disability was present
in service or proximate thereto, or is otherwise related
to service. A chronic pulmonary disability was initially
medically diagnosed decades after service at a time too
remote to be reasonably related to service. Consequently,
service connection for a chronic pulmonary disability is
not warranted.
II. An Increased (Compensable) Rating for Bilateral
Defective Hearing, for the Period Prior to June 10, 1999
The appellant contends, in essence, that his bilateral
hearing loss warrants a higher disability rating.
Disability evaluations are determined by application of a
schedule of ratings which is based on average impairment
of earning capacity under the VA's Schedule for Rating
Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The
Board will consider appellant's bilateral defective
hearing in the context of the total history of that
disability, particularly as it affects the ordinary
conditions of daily life, including employment, as
required by the provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10
and other applicable provisions. Schafrath v. Derwinski,
1 Vet. App. 589 (1991).
It is reiterated that the VA amended its regulations for
rating diseases of the ear and other sense organs (which
includes defective hearing acuity), effective June 10,
1999. Under VA regulations in effect prior to June 10,
1999, the severity of a veteran's hearing loss was
determined by comparison of audiometric test results with
specific criteria set forth at 38 C.F.R. § 4.85, Part 4,
Diagnostic Codes 6100 through 6110. Evaluations of
bilateral defective hearing ranged from noncompensable to
100 percent based upon organic impairment of hearing
acuity, as measured by results of controlled speech
discrimination tests, and average hearing threshold level,
as measured by puretone audiometry tests in the
frequencies of 1,000, 2,000, 3,000, and 4,000 hertz
(cycles per second). The VA's Schedule for Rating
Disabilities provided a framework by which such
audiometric test results may be translated into a numeric
designation ranging from Level I (for essentially normal
hearing acuity) to Level XI (for profound deafness), in
order to rate the degree of disability resulting from the
service-connected defective hearing. Under 38 C.F.R.
§ 4.85(c) Table VIa was used only when the Chief of the
Audiology Clinic certified that language difficulties or
inconsistent speech audiometry scores made the use of both
puretone average and speech discrimination inappropriate.
With respect to the period prior to June 10, 1999, an
August 1976 rating decision granted service connection and
assigned a noncompensable evaluation for high frequency
hearing loss, on the basis of a service separation
examination report. Since on January, September, and
November 1990 VA audiologic examinations, the respective
puretone threshold averages in the right ear were 10,
13.75, and 5 decibels with speech recognition ability of
96, 94, and 100 percent (Level I), and respective puretone
threshold averages in the other service-connected ear were
23, 27.5, and 20 decibels with speech recognition ability
of 96, 94, and 100 percent (Level I), a noncompensable
rating for the service-connected bilateral defective
hearing was confirmed by February and October 1990 and
February 1991 rating decisions under 38 C.F.R. §§ 4.85,
4.87, Table VII, Code 6100 (effective prior to June 10,
1999).
On an April 1996 VA audiologic examination, the recorded
pure tone thresholds were the following (in decibels):
For the right ear, 25 at 1,000 Hertz, 20 at 2,000 Hertz,
15 at 3,000 Hertz, and 25 at 4,000 Hertz; and for the left
ear, 20 at 1,000 Hertz, 25 at 2,000 Hertz, 35 at 3,000
Hertz, and 40 at 4,000 Hertz. Average pure tone
thresholds were 21.2 and 30 decibels with speech
recognition ability of 100 and 100 for the right and left
ears, respectively. Since on that April 1996 VA
audiologic examination, the puretone threshold average in
the right ear was 21.2 decibels with speech recognition
ability of 100 percent (Level I), and puretone threshold
average in the other service-connected ear was 30 with
speech recognition ability of 100 percent (Level I), a
noncompensable rating for the service-connected bilateral
defective hearing disability would have been appropriate
under 38 C.F.R. §§ 4.85, 4.87, Table VII, Code 6100
(effective prior to June 10, 1999).
Pursuant to the Board's remand, a July 1998 VA audiologic
examination was conducted, and the recorded pure tone
thresholds were the following (in decibels): For the
right ear, 20 at 1,000 Hertz, 20 at 2,000 Hertz, 15 at
3,000 Hertz, and 30 at 4,000 Hertz; and for the left ear,
30 at 1,000 Hertz, 20 at 2,000 Hertz, 35 at 3,000 Hertz,
and 50 at 4,000 Hertz. Average pure tone thresholds were
21 and 34 decibels with speech recognition ability of 88
and 88 for the right and left ears, respectively. Since
on that July 1998 VA audiologic examination, the puretone
threshold average in the right ear was 21 decibels with
speech recognition ability of 88 percent (Level II), and
puretone threshold average in the other service-connected
ear was 34 with speech recognition ability of 88 percent
(Level II), a noncompensable rating for the service-
connected bilateral defective hearing disability would
have been appropriate under 38 C.F.R. §§ 4.85, 4.87, Table
VII, Code 6100 (effective prior to June 10, 1999).
Based on this degree of disability shown, an increased
(compensable) evaluation for the service-connected
bilateral defective hearing for the period prior to June
10, 1999 is not warranted. In this regard, the Court
explained in Lendenmann v. Principi, 3 Vet. App. 345, 349
(1992) that "[a]ssignment of disability ratings for
hearing impairment are derived by a mechanical application
of the rating schedule to the numeric designations
assigned after audiometric evaluations are rendered."
The evidence does not show that for the period in
question, the service-connected bilateral hearing loss
presented such an unusual or exceptional disability
picture as to render impractical the application of the
regular schedular standards, as is required for
consideration of an extraschedular evaluation. 38 C.F.R.
§ 3.321(b)(1). Significantly, SSA records, including a
1992 administrative law judge's decision, and other
records indicate that appellant's unemployability is not
due to the service-connected bilateral hearing disability,
nor has it been otherwise contended. It is also
significant that on audiologic examinations, his speech
discrimination ability has not been shown to be severely
impaired, nor has any evidence suggested any marked
interference his defective hearing has caused with job
functions/duties or daily activities of living, for the
period in question.
The Board has also considered the provisions of 38 C.F.R.
§ 4.10, which relate to functional loss. It is the
Board's opinion that a compensable evaluation for the
service-connected bilateral defective hearing disability
for the period in question would not be warranted,
particularly in light of the audiometric results that do
not indicate severely decreased speech discrimination
ability. Since the preponderance of the evidence is
against allowance of the appellate issue for the
aforestated reasons, the benefit-of-the-doubt doctrine is
inapplicable.
III. An Increased (Compensable) Rating for Left Ear
Otitis Media with Postoperative Residuals, for the Period
Prior to June 10, 1999
It is reiterated that the VA amended its regulations for
rating diseases of the ear and other sense organs (which
includes otitis media), effective June 10, 1999. Under VA
regulations in effect prior to June 10, 1999, Diagnostic
Code 6200 provided a 10 percent rating for chronic
suppurative otitis media, during the continuance of the
suppurative process. NOTE: To be combined with ratings
for loss of hearing. Although under Diagnostic Code 6201
in effect prior to June 10, 1999, chronic catarrhal otitis
media is rated on the basis of loss of hearing, assigning
appellant a separate rating under Diagnostic Code 6201
would obviously violate the proscription against
pyramiding since he was already assigned a separate rating
for bilateral hearing loss under 38 C.F.R. § 4.85
(effective prior to June 10, 1999). See 38 C.F.R. § 4.14
(1999) and Esteban v. Brown, 6 Vet. App. 259 (1994).
The service medical records reveal that in November 1975,
appellant was treated for left ear otitis media with
drainage. During November 1989 VA hospitalization, he
reported intermittent infection with drainage, pain, and
hearing loss since an in-service earache. He underwent a
left tympanomastoidectomy for diagnosed chronic otitis
media with central perforation of the left tympanic
membrane.
On April 1996 VA ENT examination, appellant complained of
hearing loss, tinnitus, and disequilibrium/unsteadiness
(service connection is in effect for tinnitus, rated as 10
percent disabling, effective July 6, 1998). Clinically,
there was an anterior 40% pars tensa perforation of the
left eardrum without active drainage/infection. The left
auricle was status post mastoidectomy. A September 1996
VA examination report included similar findings.
Pursuant to May 1998 Board remand, additional SSA records
with private and VA clinical records were obtained and an
August 1998 VA ENT examination was conducted. Said
additional VA clinical records reveal that in October
1988, slight erythema of the left middle ear was
clinically noted. It was noted that the previous month,
the ear had greenish drainage and an antibiotic had been
prescribed. In August 1990, he denied ear drainage. On
said August 1998 VA ENT examination, appellant's
complaints included intermittent left ear drainage.
Clinically, there was an 80% central perforation of the
left eardrum with mild mastoid cavity inflammation.
On June 9, 1999 VA ENT examination, the examiner noted a
history of eardrum perforation and mastoid cavity surgery,
with "intermittent infection, which evidently is several
times a year, this usually can be cleared up without any
real difficulty." Clinically, the eardrum had a central
perforation without cholesteatoma ingrowth. Additionally,
it was noted that there was no evidence of active
infection.
The competent evidence of record indicates that appellant
intermittently has active left ear infection, which
occasionally has required antibiotic treatment.
Suppuration is defined as the "formation of pus; the act
of becoming converted into and discharging pus." See
Dorland's Illustrated Medical Dictionary, 1471 (24th ed.
1965). With resolution of reasonable doubt in appellant's
favor, it is the Board's opinion that the left ear
recurrent infectious process with drainage, although
intermittent, is more nearly reflective of chronic
suppurative otitis media, for which a schedular evaluation
of 10 percent is warranted, the maximum evaluation
assignable under Diagnostic Code 6200. See also 38 C.F.R.
§ 4.7.
The evidence does not show that for the period in
question, the service-connected left otitis media
disability presented such an unusual or exceptional
disability picture as to render impractical the
application of the regular schedular standards, as is
required for consideration of an extraschedular
evaluation. 38 C.F.R. § 3.321(b)(1). Significantly, the
evidence did not suggest any marked interference his left
otitis media disability has caused with job
functions/duties or daily activities of living, for the
period in question.
The Board has also considered the provisions of 38 C.F.R.
§ 4.10, which relate to functional loss. It is the
Board's opinion that a 10 percent evaluation for the
service-connected left otitis media disability for the
period in question more than adequately compensates
appellant for any functional impairment attributable
thereto, particularly since active infection is
intermittent and responsive to treatment.
ORDER
Service connection for a pulmonary disorder and an
increased (compensable) rating for bilateral defective
hearing, for the period prior to June 10, 1999, are
denied. To this extent, the appeal is disallowed.
A 10 percent increased rating for left ear otitis media
with postoperative residuals, for the period prior to June
10, 1999, is granted, subject to the applicable provisions
governing payment of monetary awards. To this extent, the
appeal is allowed.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal
to the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required
to file a copy of your Notice of Appeal with VA's
General Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.